Selangor MB Fiasco: The right to seek dissolution – Art Harun

I had, during the Perak MB crisis, written a number of articles on my blog, ARTiculations, touching on the various Constitutional issues arising from said crisis.

Particularly, I had discussed in those articles the right of an incumbent MB to seek dissolution of the State Legislative Assembly (SLA) and what the Sultan was supposed to do when a dissolution was sought.

The current MB fiasco in Selangor involves almost the same issues. I am called therefore to revisit the issues and my opinion on the same.

How is loss of confidence determined?

Prior to the Federal Court’s decision in the Nizar’s case, our High Court in Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187 decided that a loss of confidence in a Chief Minister can only be determined from the floor of the Assembly, namely, through a vote of no confidence in the Assembly.

In Stephen Kalong Ninkan’s case, the Governor of Sarawak received a letter signed by 21 members of the Council Negri (equivalent to the Legislative Assembly) expressing no confidence in Stephen Kalong Ningkan as the Chief Minister.

The Governor then asked Stephen to resign. Stephen refused to resign. The Governor then declared that Stephen and all the members of the Supreme Council (equivalent to the Executive Council) as having ceased to hold office. A new Chief Minister was then appointed by the Governor.

The High Court ruled that the Governor had acted ultra vires the State Constitution. In the Nizar case, similarly there was no vote of no confidence being passed at the Assembly. Some members of the Assembly (Aduns) from his coalition jumped ship and became independent Aduns, leaving Nizar without a majority in the Assembly.

The Federal Court however held that that was enough to show that Nizar had ceased to command the confidence of the majority of the Assembly. The late Sultan of Perak was therefore entitled to remove him and appoint a new Menteri Besar.

In both cases, the provision of the respective State Constitution was similar:

"If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council.”  Article 7 (1) of the Sarawak Constitution.

"If the MB ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council." Article 16 (6) of the Perak Constitution.

It would therefore appear that the current position in Malaysia on this issue is that a loss in confidence in an MB need not be determined solely by way of a no confidence vote in the Assembly.

It would thus appear too that the announcement made during the press conference by Dr Wan Azizah Wan Ismail recently during which Statutory Declarations of a majority number of Aduns showing support for Dr Wan Azizah to be the next MB is proof enough that Khalid had lost the confidence of the majority of the Assembly.

That position is further cemented when PAS announced that it supports Dr Wan Azizah and Azmin Ali as the MB of Selangor.

What can Khalid do?

Of course he can resign. But he hasn’t. He has maintained that he wants to seek an audience with His Royal Highness the Sultan of Selangor. His Highness is however on holiday and had refused Khalid’s request for an audience while on holiday.

Some opine that Khalid has been effectively removed and the Sultan has no choice but to appoint a new MB. Others opine that Khalid’s government has ceased to exist. His rule is apparently illegitimate and illegal.

Many say that Khalid has no right to seek an audience with the Sultan.

Much of these opinions are grounded on a deep suspicion that Khalid is going to advise the Sultan to dissolve the Assembly. If the Sultan accedes to this request, a State election would have to be had, thereby throwing the whole episode to a climactic end with a wholly unpredictable conclusion judging from the current political climate in this country.

Don’t we just love Malaysian politics?

The Selangor State Constitution

I always go back to the basics when it comes to important questions. That is because I believe that we would not be in this state of political chaos and upheavals if we stick with the basic premise of the State or country.

Almost all of the political and societal imbalances, issues, problems and conflicts that we are facing in this country nowadays are rooted in the almost blatant disregard to or twisting of our basic premise in order to suit our political agendas.

I therefore believe that we have to look at the Selangor State Constitution to find out what could or could not be done by Khalid in current circumstances. The provision is as follows:

"If the MB ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Highness dissolves the Legislative Assembly, he shall tender the resignation of the State Executive Council." Article 53 (6) of the Selangor Constitution.

It must also be pointed out that Article 55 (2) (b) of the State Constitution provide that the Sultan may act in his discretion in, among others, withholding of consent to a request for dissolution of the Assembly.

The position is thus clear in the State Constitution.

Firstly, an incumbent MB who had ceased to command the confidence of the majority of the members of the Assembly may seek dissolution. This is a constitutional right of any incumbent MB in that circumstance. Whether we like it or not, Khalid has this right.

If we fight tooth and nail for our rights and for the preservation of our constitutional rights, then I say we have to respect Khalid’s right under the Constitution. It does not speak well of us to stand for what we believe as our constitutional rights whole at the same time we pay scant regard to other people’s rights just because we do not like them.

Secondly, upon being requested dissolution, the Sultan maintains discretion by virtue of Article 55 (2) (b) whether or not to dissolve the Assembly. Now that is the Sultan’s right. Again we have to respect that right.

In the Perak case, I argued that the late Sultan ought to have dissolved the Assembly because most of the learned opinion on the matter suggests that the Sultan’s so called discretion in the matter is almost purely “formal.”

The late Sultan of Perak himself succinctly put in his book, "Constitutional Monarchy, Rule of Law and Good Governance" that "under normal circumstances, it is taken for granted that the YDP Agong would not withhold his consent to a request for dissolution of Parliament. His role under such situation is purely formal."

Wade and Phillips, in "Constitutional Law" posits that “no sovereign could constitutionally refuse to grant a dissolution of Parliament at the time of his (the PM's) choice".

S A de Smith's in his book, “Constitutional and Administrative Law” observes that "some modern writers have argued that the usage of acceding to request has hardened into a binding convention never to refuse a request, or the power to refuse exists in theory but not in practice, or that the monarch is too remote from political realities or too likely to be swayed by conservative influence or prejudice or too vulnerable to criticism to exercise an independent discretion.

Hence such a refusal would now be highly controversial, unless the request itself was manifestly improper; and this fact alone must make any attempt at definition highly tentative." (emphasis mine).

S A de Smith further wrote:

“If a Government, having lost its majority… were to insist on remaining in office instead of offering its resignation or advising a dissolution, the Queen would be justified, after the lapse of a reasonable period of time, in requesting the Prime Minister to advise her to dissolve Parliament and, if he were to refuse, in dismissing him and his Ministers.”

In my article “The Perak Crisis - my rebuttal to Lord Lester's opinion”, I had, along the line of de Smith’s hypothesis posit the scenarios involved as follows:

The first scenario:

• the Premier loses majority
• the Premier offers resignation - if this happens, the Queen appoints a new Premier and the matter ends there.
• The second scenario:
• the Premier loses majority
• the Premier requests dissolution
• the Queen dissolves Parliament
• a general election is called

The third scenario:

• the Premier loses majority
• the Premier refuses to resign
• the Premier refuses to advise dissolution
• the Queen waits
• after a reasonable period of time, the Queen invites the Premier to advise her to dissolve
• the Premier refuses
• the Queen sacks the Premier

The above notwithstanding, we will remember that in the Perak case, the late Sultan had refused to dissolve the Assembly despite Nizar requesting a dissolution. The Federal Court however held that the Sultan was instead right in removing Nizar.

It would therefore be that the position in Malaysia on this issue is that the Sultan may or may not in the Sultan's discretion agree to dissolve upon a request being made.

The issue therefore rests with the Sultan's discretion.

Be that as it may, in view of what the State Constitution provides, Khalid has the right to seek an audience with the Sultan. During that audience, Khalid may request for dissolution of the Assembly as provided for by the State Constitution.

It is then up to the Sultan whether or not to accede to his request. If His Highness agrees, we would have a State election. If His Highness doesn’t agree, Khalid would have to tender the resignation of his State Executive Council. The Sultan may then appoint a new one.

In the meantime Khalid still remains in office together with his excos. Perhaps as a caretaker.

* Art Harun is a lawyer and professional speaker. TMI